Make ISPs into "common carriers," says former FCC commissioner

Not every former FCC member is a telco industry lobbyist.

It's time for the Federal Communications Commission to correct its past mistakes and get tough on broadband providers, a retired FCC commissioner says.

Michael Copps, an FCC commissioner from 2001 to 2011 (and acting chairman for several months in 2009), is proof that not every former FCC member becomes a lobbyist for the industries the commission regulates. The only commission member to vote against allowing the Comcast/NBC Universal merger, Copps is now a self-described public interest advocate who leads the Media and Democracy Reform Initiative at Common Cause.

Further Reading

The commission can still put ISPs under its thumb, but it may not want to.

On Wednesday, Copps wrote a blog post titled, "The Buck Stops At The FCC," calling upon the commission to "reclassify broadband as 'telecommunications' under Title II of the Communications Act." The effect of that move would be to designate Internet service providers as "common carriers," making them subject to increased FCC regulation.

Such a move would bring fierce opposition from telecommunications companies and their friends in Congress. But the FCC's previous failure to reclassify broadband blew up in its face when a court ruled that that the agency couldn't impose anti-blocking and anti-discrimination regulations on ISPs because they aren't classified as common carriers.

"The good news is that the solution is pretty simple," Copps wrote. "It doesn’t require a new telecommunications statute replete with time-consuming years of legislative horse-trading and special interest lobbying. All it requires is an FCC big enough to own up to its previous mistakes and courageous enough to put our communications future back on track."

He continued:

The DC Circuit Court of Appeals pointed the way out of the dilemma created when the Commission reclassified broadband as an “information service” over ten years ago. The Court held that the Commission has authority to make decisions on broadband and that these decisions are entitled to considerable deference by the judiciary. The FCC could have decided on a different path and still garnered court approval. Importantly, it can also change course if it justifies the reasons for the change.

What the judges said last week was that the Commission justified its Open Internet rules the wrong way. Had the agency just kept treating advanced telecommunications as “telecommunications,” its Internet Freedom rules would have passed muster. But by calling broadband an “information service,” the FCC put it beyond the reach of Title II which applies to telecommunications. And Title II is where such things as consumer protections, privacy guarantees, public safety, and ubiquitous build-out requirements pertain. Who, other than the big companies trying to gain market power over broadband, would ever have argued that Congress intended broadband communications to be stripped of such elemental consumer and public interest protections?

The time is now for the FCC to classify broadband as Title II. Without this step, we are playing fast-and-loose with the most opportunity-creating technology in all of communications history. Without this step, we are guaranteeing an Internet future of toll-booths, gatekeepers, and preferential carriage. Without this step, we stifle innovation, put consumers under the thumb of special interests, and pull the props from under the kind of rich civic dialogue that only open and non-discriminatory communications can provide.

Copps ended his post by encouraging readers to sign a Common Cause petition telling the FCC to reclassify broadband.

Netflix has warned that without net neutrality regulations, "a domestic ISP now can legally impede the video streams that members request from Netflix, degrading the experience we jointly provide."

Current FCC commissioners have given no indication that they would reclassify broadband as Copps suggests, but current Chairman Tom Wheeler said he views the recent court decision as an invitation for the FCC to act... in some undefined way. "The court invited the commission to act, and I intend to accept that invitation," Wheeler said last week. "Using our authority, we will readdress the concepts in the Open Internet Order, as the court invited, to encourage growth and innovation and enforce against abuse."

That could mean rewriting the Open Internet Order to put it on solid legal footing, but the changes probably wouldn't impose anti-blocking and anti-discrimination rules that prevent ISPs from blocking services and charging content providers for access.

We are living in the Information Age. This newfound ability to communicate information worldwide though the internet will be a mile marker in human history. Allowing businesses and corporations to strangle it for their own profits is doing much more harm than good in the long run.

Almost to a person the public, in any country, wants a free and open internet. The fact it is not so can be attributed to two sets of individuals, politicians and business tycoons. They know they need each other to keep their seats of power and profits respectively. It's quite sad that the people get screwed in the process.

There's a good chance that the FCC is just waiting until ISPs do something so anti-consumer that the political backlash for anyone opposing reclassifcation back to Title II telecom is no longer worth the lobbying efforts from ISPs.

I don't pay money so I can be told what to access, I pay for the access. If they want to also tell me what I can access, then I want a major discount, since I will now need several ways to access the internet just so that I can have what I had before/was suppose to have.

It's total BS that ISP's get to have it both ways. The common carrier status is what should protect them from from illegal activities over their lines, at the expense of FCC oversight. Instead, there is little to no regulatory control AND due to protectionist provisions in the DMCA and CDA (Communications Decency Act), they get a free pass.

I say give them what they want, and let them hold on to not being a common carrier. It gives them the control they desire over the content on their lines. By definition though, that control should make them legally responsible for that content. Law enforcement can then hold them accountable for facilitating: illegal firearm and drug transactions, child pornography, extortion, slander, and a whole host of other crimes...including of course, copyright infringement.

It's total BS that ISP's get to have it both ways. The common carrier status is what should protect them from from illegal activities over their lines, at the expense of FCC oversight. Instead, there is little to no regulatory control AND due to protectionist provisions in the DMCA and CDA (Communications Decency Act), they get a free pass.

I say give them what they want, and let them hold on to not being a common carrier. It gives them the control they desire over the content on their lines. By definition though, that control should make them legally responsible for that content. Law enforcement can then hold them accountable for facilitating: illegal firearm and drug transactions, child pornography, extortion, slander, and a whole host of other crimes...including of course, copyright infringement.

This honestly makes oh so much sense. I never thought about this in this light before but it's brilliant. This would be the only thing that would have the ISPs CLAMORING for Title II classification.

This sort of result for broadband has been in the wind for years. Its why, in the past, whenever I had the choice, I used DSL instead of cable. Because DSL was somewhat more regulated, coming over telephone lines, as it were. Now all the carriers are "fighting to be free": to filter, to discriminate, to favor their own overpriced services.

It's total BS that ISP's get to have it both ways. The common carrier status is what should protect them from from illegal activities over their lines, at the expense of FCC oversight. Instead, there is little to no regulatory control AND due to protectionist provisions in the DMCA and CDA (Communications Decency Act), they get a free pass.

I say give them what they want, and let them hold on to not being a common carrier. It gives them the control they desire over the content on their lines. By definition though, that control should make them legally responsible for that content. Law enforcement can then hold them accountable for facilitating: illegal firearm and drug transactions, child pornography, extortion, slander, and a whole host of other crimes...including of course, copyright infringement.

That'd be a fun twist, 'If an ISP is monitoring the content, then they're accountable for the content'. Since they need to monitor the data to determine if it counts towards the user's data cap.....

if one individual like Roger Ailes can co-opt an entire 'news organization' towards a political slant, wouldn't it also be plausible that another individual could co-opt an ISP and have similar bias to websites that agree with their view and 'slow' traffic to their detractors?

To cite Rouboute Guilliman; this is mostly theoretical, but is the FCC waiting for a practical before they will act?

This is by far the best option. As long as ISPs are geographic monopolies or duopolies, they should not be allowed to be in the content business. They should be dumb pipes, providing bandwidth the same way my power company just provides power.

I've been trying to think of a good comparison for this for my family on why they should care about net neutrality beyond the "your netflex may or may not get slower if you dont have the right carrier."

Best I can come up with is if some retails sites now take twice as long for you to get your products because competitors pay Fedex/UPS/USPS to prioritize their own stuff and slow down others. I figured making a comparison with tangible goods might help but its still a flawed analogy.

More on topic: Should we classify these ISPs as common carriers? Absolutely. If we do try to do that I can imagine a heavy pushback from ISPs, not to mention they may just try and find new ways to skirt around it.

If he thinks it's such a good idea, why didn't he do it himself when he had the chance? Politicians. It's been clear for a long time that ISPs need to be common carriers.

While I'm no fan of former Commissioner Copps, it should be noted that he did oppose the FCC's rationale for the NN Order, although ultimately he voted in favor of the rules. Here is the FCC Order adopting the NN rules:

I've been trying to think of a good comparison for this for my family on why they should care about net neutrality beyond the "your netflex may or may not get slower if you dont have the right carrier."

Best I can come up with is if some retails sites now take twice as long for you to get your products because competitors pay Fedex/UPS/USPS to prioritize their own stuff and slow down others. I figured making a comparison with tangible goods might help but its still a flawed analogy.

More on topic: Should we classify these ISPs as common carriers? Absolutely. If we do try to do that I can imagine a heavy pushback from ISPs, not to mention they may just try and find new ways to skirt around it.

Actually, a good comparison isn't even needed! I convinced my strongly lolbertarian (he's not libertarian, more of a poe's law libertarian) who's severely anti-regulation and pro-superfree market that net neutrality was a good thing.

How?

The year is 1994. Barns and Noble notices this new upstart bookseller without a physical storefront trying to edge into the national market. They spend 1/5th of their net profit for the year paying the top 10 ISPs in the country to block all traffic to and from this website. Amazon.com is stillborn.

Net Neutrality allows competition to happen at all. Almost by definition, the incumbent has more money than a newcomer. The newcomer can't afford to pay off the ISPs to let them access their customers, but an incumbant sure can afford to pay off the ISPs to kill their competition.

Would Yahoo! have loved to be able to kill Google when it was young and vulnerable? Absolutely! What if Microsoft and Sony got together and decided that they could out-spend Steam and kill a huge chunk of their competition? What about blocking Nintendo?

All of that, and more, is possible in a world where net neutrality is a footnote in history.

There's a good chance that the FCC is just waiting until ISPs do something so anti-consumer that the political backlash for anyone opposing reclassifcation back to Title II telecom is no longer worth the lobbying efforts from ISPs.

It's the spineless 'I couldn't do anything about it' thing to do.

I'd agree with you if any common person actually supported the larger ISPs pushing this. My guess is the public isn't clamoring for this because they don't quite understand the importance yet.